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2023
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[2023] ZAGPPHC 262
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Defenders Of The People and Another v Municipal Manager: The City Of Tshwane Metropolitan University and Others [2023] ZAGPPHC 262; B2057/2023 (26 April 2023)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: B2057/2023
(1)
REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
DATE:
26 April 2023
In
the matter between:
DEFENDERS
OF THE PEOPLE 1ST
APPLICANT
VINCENT
SIPHO MOKONE 2ND
APPLICANT
and
THE
MUNICIPAL MANAGER: THE CITY OF
TSHWANE
METROPOLITAN UNIVERSITY 1ST
RESPONDENT
THE
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY
2ND
RESPONDENT
INDEPENDENT
ELECTORATE COMMISSION 3RD RESPONDENT
RUPHOS
MPHAHLELE 4TH
RESPONDENT
MAKGABO
ALEX KOBO 5TH
RESPONDENT
JUDGMENT
Van
der Schyff J
Introduction
[1]
The applicants approached the court on an
urgent basis. They seek temporary relief in that they seek an order
interdicting the fourth
respondent (Mr. Mphahlele) from representing
to the Electoral Commission and the public that the second applicant
(Mr. Mokone)
has been expelled from the first applicant (DOP), and
instructing the Municipal Manager and /or Chief of the Electoral
Commission
to declare a vacancy on the DOP’s PR seat within the
Council for the City of Tshwane Metropolitan Municipality. In the
event
that the Municipal Manager of the Chief Electoral Commission
has been instructed to declare the said vacancy, interdicting the
first, second, and third respondents from acting in accordance with
the instructions of Mr. Mphahlele, pending the finalization
of a
review to set aside various orders of the third and fourth
respondents. The DOP also wants to interdict the respondents from
substituting Mr. Mokone with the fifth respondent, Mr. Kobo.
[2]
The application was ostensibly served by
email on the first to third respondents, and on Mr. Mphahlele and Mr.
Kobo’s ‘attorneys
of record.’ This manner of
service when legal proceedings are instituted, e-mail service, is not
provided for in terms of
the Uniform Rules of Court, but Rule 6(12)
of the Uniform Rules of Court provides that the form of service can
be condoned in an
urgent application. The question that the presiding
judge has to ask herself is whether there was effective service.
Would the
respondent have become aware of the application?
[3]
The first to third respondents, and the
fifth respondent, were not before the court. The fifth respondent,
Mr. Kobo, has a direct
interest in the litigation at hand. Mr. Kobo
is described in the application as ‘an adult male person with
full legal capacity
‘C/o Ruphus Mphahlele Office No.3 Rentco
Building…’. The application was not served on Mr. Kobo’s
work
or residence address. There is no way in which this court can
determine whether Mr. Kobo is aware of the application.
[4]
As for service on the first to third
respondents, it is not explained in the service affidavit who the
individuals are to whom the
emails were ostensibly sent, and whether
it was received or read by them. This, is in my view, sufficient
reason to remove the
matter from the roll to allow for proper
service.
[5]
As for the extreme urgency with which this
application was brought, the applicants allege that they only became
aware on 21 April
2023 through Mr. Mphahlele’s Facebook, that
Mr. Mokone is no longer a member of the DOP. The applicants, in turn,
state that
Mr. Mpahlele was recalled as party leader in a National
Lekgotla held on 18 March 2023. A National Task Team has since been
appointed
with a mandate to call for a National Elective Conference.
[6]
In annexure ‘DOP 02’ to the
founding affidavit, a letter dated 19 March 2023, the deponent to the
founding affidavit
states, that during a meeting of 18 March 2023,
‘[i]t was discussed that the party has had at least four
secretaries general
in the past six months. All of whom were
unconstitutionally suspended by the President, Defender Ruphos
Mphahlele. … The
National Working Group Meeting was requested
in 2022, but instead, those who called the meeting were victimized
and put on unlawful
suspensions’’. Thus, it is evident
that the applicants were aggrieved, rightly or wrongly, by Mr.
Mphahlele’s
conduct, as long ago as 19 March 2023.
[7]
On the applicants’ own version, Mr.
Mokone was aware as early as 18 March 2023 that Mr. Mphahlele would
not accept the outcomes
of the meeting on 18 March 2023. A
disciplinary hearing was called for on 14 April 2023, and Mr.
Mphahlele was expelled from DOP.
The applicants should have
approached the court already at this point for a determination
regarding the disputed leadership. The
applicants were also already
informed in an email from the third respondent on 28 March 2023 that
they needed to approach the court
for relief regarding their disputed
leadership issue.
[8]
Despite the history of Mr. Mphahlele’s
alleged unconstitutional conduct, this application was brought on the
basis of the
utmost urgency. The notice of motion was signed on 24
April 2023. The emails were sent by 18h14, and the respondents
were
required to file their notices of intention to oppose and answering
affidavits by 10h00 on 25 April 2023.
[9]
It is trite, that when an applicant does
not approach the urgent court at the earliest opportunity after the
need for an urgent
court application arose, any urgency that follows,
is regarded as self-created urgency. Courts are generally not
inclined to come
to the aid of litigants whose failure to approach
the court timeously leads thereto that they later approach the court
on a basis
of extreme urgency. Both applicants were aware of the
ensuing leadership dispute, and the third respondent’s view
that they
should approach a court for relief, as early as 28 March
2023. Had they acted at that point, the application could have been
properly
and effectively served, and the papers could be exchanged in
an orderly fashion. This would have benefitted the applicants
themselves
because they would have been able to file a reply to any
respondent’s opposing affidavit.
[10]
In these circumstances, I agree with the
fourth respondent’s counsel that the applicants, in any event
Mr. Mokone, is the
author of his own misery in that his failure to
approach the court timeously for a declaratory order, resulted in him
having had
to approach the court on severely truncated timelines, and
without serving the application on Mr. Kobo. As a result, the
application
stands to be struck from the roll.
[11]
It is also necessary to reflect on the fact
that the application, as it stands, is riddled with factual disputes,
and issues that
need clarification. Mr. Mokone’s
locus
standi
to bring this application, and
Mr. Monyama’s authority to depose to the founding affidavit,
are questioned by Mr. Mphahlele.
Mr. Mphahlele claims that the
deponent of the applicants’ founding affidavit was expelled
from the DOP as far back as 4 April
2022.
[12]
It is clear that a leadership dispute
underpins this application. In my view, Mr. Monyamane did not make
out a case that he has
the necessary authority to depose to an
affidavit on behalf of the DOP or enter the DOP into litigation. He
describes himself as
a member of the DOP’s National Task Team
and states that he is authorised to depose to the affidavit on behalf
of the DOP
due to his position as the Task Team Leader. He failed,
however, to substantiate his claim with reference to
the
DOP’s Constitution. Due to the extreme urgency and truncated
time period within which the application was launched, the
applicants
did not reply to the answering papers that were filed after the
applicant’s counsel made his submissions. Mr.
Mphahlele’s
assertion that Mr. Monyamane was expelled from the DOP, already in
2022, thus stands uncontested. On the papers,
as it stands, neither
Mr. Monyamane, nor Mr. Mokone made out a case that they were
authorised to institute litigation on behalf
of the DOP.
[13]
As a result, the application stands to be
struck off the roll with costs.
ORDER
In
the result, the following order is granted:
1. The
application is struck from the roll with costs.
E
van der Schyff
Judge
of the High Court
Delivered:
This judgement is handed down electronically by uploading it to the
electronic file of this matter on CaseLines. As a
courtesy gesture,
it will be sent to the parties/their legal representatives by email.
For
the applicant: Adv.
H. Legoabe
Instructed
by: LEOFI
LESHABANA ATTORNEYS
For
the respondent: Mr.
Maboko
Instructed
by: NJ
NDHLOVU ATTORNEYS
Date
of the hearing: 25
April 2023
Date
of judgment: 26
April 2023